In California, Lying In Politics Is Unconstitutional

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It’s a persistent political fantasy, particularly when the Steve Poizners and Meg Whitmans of the world are accusing each other of constant fibs: If only we could somehow force politicians to be honest, there'd be less political nonsense, and thus enough good will for our leaders to give us balanced budgets, high-performing schools and low taxes.

Few Californians know it, but a quarter-century ago, we tried to legislate political honesty. A ballot measure approved by voters in June 1984 banned politicians from publishing or saying libelous or slanderous things about their opponents. The penalty? Disqualification from office.

The ban is still on the books. Article VII, Sec. 10 of the California Constitution begins:

“No person who is found liable in a civil action for making libelous or slanderous statements against an opposing candidate during the course of an election campaign for any federal, statewide, Board of Equalization, or legislative office or for any county, city and county, city, district, or any other local elective office shall retain the seat to which he or she is elected, where it is established that the libel or slander was a major contributing cause in the defeat of an opposing candidate....”

Why hasn’t it stopped the lying? Political culture trumps constitutions. Losing candidates almost always concede and move on. To enforce this part of the constitution, a losing candidate would have to go to court and prove not only that the victor lied but also that he or she had lost because of lies. Such a case would be hard to prove, and would make the losing candidate look like a sore loser.

The lesson? Even making political lying unconstitutional doesn’t stop political lying. We can’t build more honest politicians. But we can make better laws, better budgets, better schools – and better constitutions that don’t have silly, unenforceable provisions.